Letting the states go to pot

Dick Polman, Inquirer National Political Columnist

It's surprising that one of Barack Obama's fulfilled campaign promises has received so little attention - particularly since the hot-button issue at hand has so many moral and social dimensions.

One year ago the candidate vowed that, if he became president, the federal government would no longer trample on the 13 states that permit the medicinal use of marijuana. The Bush administration, defying the tenets of small-government/state's-rights conservatism, had repeatedly directed the Drug Enforcement Administration to raid medicinal pot dispensaries (particularly in California) and bust the people who had been deputized by local authorities to grow the weed. Obama promised a major shift in policy, stating last March: "I'm not going to be using the Justice Department to try to circumvent state laws on this issue."

And last week, Attorney General Eric Holder told the press that the raids would indeed end, despite some last-ditch DEA raids conducted shortly after the inauguration: "What the president said during the campaign, you'll be surprised to know, will be consistent with what we'll be doing here in law enforcement. What he said during the campaign (about medicinal marijuana) is now American policy."

Upon hearing this news, I thought of Ed Rosenthal. I met him six years ago, in Oakland, California. Newly convicted on a federal drug rap - he had cultivated pot plants as a deputized Oakland city official, in accordance with the state's medicinal marijuana law - he was facing five years in jail, the mandatory minimum for drug dealers. I interviewed him at length, at a time when I was on a brief hiatus from political writing.

Rosenthal had five lawyers working to keep him out of jail. At times he seemed to enjoy the idea of being a martyr - he compared himself to "the Berrigan brothers," invoking the Catholic priests who were jailed during the '60s for antiwar actions - but there was something truly Kafkaesque about his case. Federal prosecutors managed to convict him as a common dealer without allowing the jurors to hear any of the evidence that he had been growing pot for medical reasons - because the feds didn't recognize state medicinal use laws in the first place.

The jurors didn't learn of this noteworthy omission until after they voted to convict him. Nearly half of them publicly renounced their verdict. I drove out to their homes to speak with them. Charles Sackett, the jury foreman, said, "I wasn't given the whole truth. They expected me to be fair as a juror, but they weren't playing fair with us." Juror Marney Craig said, "It feels horrible to have been so manipulated...And what about the voters of California, passing medical marijuana (in 1996)? How can Washington come in and say, 'Your opinion doesn't count for anything?'"

Actually, candidate George W. Bush originally signaled, in 1999, that he was fine with the traditional conservative credo, that states should decide such matters for themselves. With respect to legalizing medicinal marijuana, Bush declared that "each state can choose that decision, as they so choose." But once in power, he amended the conservative credo, dictating drug policy from Washington.

Seeking to understand the wisdom of dispatching federal agents to raid pot dispensaries, I caught up with Bush's top drug official, John Walters. We spoke in his limo early one morning as it rolled through Las Vegas. (Nevada is also one of the states that permits medical marijuana). He told me that medical patients had become a thorny PR problem for the feds, because "nobody wants to deny comfort to suffering people." However, he dismissed marijuana as "snake oil" that had no redeeming medical use, and he said that the legalize-marijuana lobby (such as it is) merely wants "to use suffering people for medical purposes. It's immoral."

And when asked whether states should be free to decide the medical-use issue for themselves, Walters replied: "I respect the frontier spirit, but we're not raised by wolves. We can't act as if we're all on our own individual islands. A civilized society has to maintain the public health and safety. Society has to provide some direction. There has to be a partnership between freedom and responsibility."

At the time we spoke six years ago, nine states had legalized medicinal marijuana. The tally today is 13, with more in the pipeline, so apparently Walters has been less than persuasive. Two weeks ago, New Jersey took a big step toward becoming the 14th state, when its Senate voted 22-16 to set up medicinal pot marijuana dispensaries and send the measure to the lower chamber. Former Gov. Tom Kean, the popular Republican, has endorsed it ("Whenever you find something that can ease someone's suffering and pain, and a doctor wants to give it to a patient with a prescription, that doctor should be allowed to do that, it's that simple"), and Gov. Jon Corzine has signaled that he would sign it.

Given the changing atmospherics in Washington, more states might be tempted to follow. And the mood shift might even help Ed Rosenthal, who, although he has managed to stay out of jail, is still enmeshed in the machinery, seeking to persuade a federal appeals court that defendants should have the right to present a complete and effective defense in cases where there is a conflict between state and federal law.

But the guy I remember best is Richard Mack. He was an ex-cop who I met in Las Vegas. I told him about a woman I had just interviewed - Holly Brady, an ex-Jersey resident with multiple sclerosis who smoked medical pot so that she could feel well enough to watch football at the sports parlors - and Mack nodded sympathetically. He said: "We should leave these people alone. I'm a conservative guy, and isn't that what Republicans say they want - limited government?"

How ironic it is that, with respect to the medicinal marijuana issue, this former Vegas cop will get what he wants from Barack Obama.